Final Order Granting Petition for Appeal and Reversing Commissioner's Final Order.

On the 19th day of November, 2001, came the petitioner, by counsel, Eric S. Black; and the respondent, by counsel, Christopher C. Quasebarth, Assistant Prosecuting Attorney, on the briefing schedule previously directed by this Court. Having reviewed the pleadings, memoranda, and record, the Court now grants the petition for appeal, reverses the Commissioner's Final Order dated April 24, 2001, and orders that the Commissioner's Final Order be vacated.

The issue in this petition for judicial review is whether the Commissioner of the West Virginia Division of Motor Vehicles erred by suspending petitioner's driving privileges on the ground that the school in which she was enrolled following her sixteenth birthday is "not approved by the state of West Virginia." Commissioner's Final Order at 3. This Court "shall reverse, vacate or modify the decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are: (1) In violation of constitutional or statutory provisions[.]" W. Va. Code § 29A-5-4(g). For the reasons that follow, this Court holds that the Commissioner's legal conclusions were contrary to statutory provisions and that it was legal error for the Commissioner to suspend petitioner's driving privileges.

I. Findings of Fact and Procedural History.

The facts in the record are undisputed. At the beginning of the 1999-2000 school year, Miss Ludwig was 15 years old. She was in compliance with the compulsory attendance statute by virtue of "Exemption B," under which she attended "instruction in the home or other approved place."1 Accordingly, she was able to and did receive her driver's permit. See W. Va. Code § § 17B-2-3 and 17B-2-5.

Miss Ludwig turned 16 on November 3, 1999. By the plain terms of the compulsory attendance statute, after her birthday, she was no longer required to attend a public school, private school approved by the county board of education or an approved home instruction program as mandated by W. Va. Code § 18-8-1.2 Although she did not attend any of the preceding approved programs after she turned 16, Miss Ludwig was enrolled in Harcourt High School, an independent study program leading to a high school diploma. Harcourt High School is licensed in Pennsylvania and is accredited by the Accrediting Commission of the Distance Education and Training Council in Washington, D.C.3

At the commencement of the 2000-2001 school year the Berkeley County School District notified the Division of Motor Vehicles that Miss Ludwig had withdrawn. The Division notified Miss Ludwig that her license would be suspended and she requested a hearing. At the hearing she presented evidence that she was indeed enrolled in Harcourt High School, a course leading to a high school diploma. See W. Va Code § 18-8-11(d). The Hearing Examiner suspended her license and found that Miss Ludwig "failed to comply with the statute, because the program in which she is enrolled is not approved by the state of West Virginia." Commissioner's Final Order at 3, (emphasis added). The Commissioner adopted the Hearing Examiner's findings of fact and conclusions of law and upheld the suspension on April 24, 2001.

II. Conclusions of Law

When courts "address questions relating to the coverage of a statute, [they] look to see if the statute's language with regard to the issue under consideration is plain and unambiguous. If it is, . . . 'it is the duty of courts not to construe but to apply the statute.'" Syl. Pt. 1, State v. Estes, 191 W. Va. 36, 443 S.E. 2d 193 (1994), quoting Syl. Pt. 1 of West Virginia Radiologic Technology Board of Examiners v. Darby, 189 W. Va. 52, 427 S.E. 2d 486 (1993). The statutes in this case are plain and unambiguous. Under West Virginia's compulsory attendance statute, W. Va. Code § 18-8-1, a child under the age of 16 must attend a West Virginia public school, an approved private school, or an approved home instruction program. To avoid suspension of the driving privilege under W. Va. Code § 18-8-11(a), on the other hand, a 16 or 17 year old child who is no longer subject to the compulsory attendance statute may continue to enjoy driving privileges if the child:

(1) Is enrolled and making satisfactory progress in a course leading to a general educational development certificate (GED) from a state approved institution or organization, or has obtained such certificate; (2) is enrolled in a secondary school of this state or any other state; (3) is excused from such requirement due to circumstances beyond his or her control; or (4) is enrolled in an institution of higher education as a full-time student in this state or any other state.

According to the plain terms of the governing statutes, a 15-year-old child who was pursuing a GED would not be in compliance with the compulsory attendance statute, but a 16-year-old pursuing a GED would nevertheless be eligible for a driver's license. Likewise, a 15-year-old child enrolled in a secondary school of another state (like Harcourt High School) that had not been approved by the county board of education would not be in compliance with the compulsory attendance statute. According to the plain terms of the driving privilege statute, however, a 16-year-old child enrolled in a secondary school of another state (like Harcourt High School) is eligible for a driver's license. While the compulsory attendance statute specifically conditions compliance on the approval of the non-public school by the county school board, the driving privileges statute specifically does not.

As the Supreme Court has held, it was constitutional for the legislature to condition the "privilege of possessing a junior operator's license on continued enrollment in some form of secondary education . . . ." Means v. Sidiropolis, 184 W. Va. 514, 517, 401 S.E. 2d 447, 450 (1990). According to the statutory text, "some form of secondary education" includes pursuing a GED, or enrolling in a secondary school of any state. In other words, while the legislature could have chosen to condition the privilege of possessing a driver's license on attendance at a public school or an approved private or approved home school until age 18, it did not. It did, however, enact the driving privilege statute as "a method of encouraging education." Id. at 519. The compulsory attendance statute and the driving privilege statute are both aimed at educating children, but by different methods depending on the age of the child. Referring to the driving privilege statute, the Court held, "the legislature has chosen to achieve its laudatory goal through the use of a rapier rather than through the use of a cudgel." Id. at 519-20.

On appeal, the Commissioner now argues that Harcourt High School is not a "school" as defined in W. Va. Code § 18-1-1(a) because it is conducted over the Internet. West Virginia Code § 18-1-1(a) provides: "'School' means the pupils and teacher or teachers assembled in one or more buildings, organized as a unit[.]" Nothing about the definition of "school" is inconsistent with conducting school over the Internet. The evidence in the record indicates that Harcourt High School is organized as a unit. It is licensed and accredited and students enroll and pursue a high school diploma. Furthermore, there is no reason to believe that the pupils and teachers of Harcourt High School are not assembled in one or more buildings.

While the medium of communication between teacher and pupil could not have been anticipated by the legislature when it adopted the definition of school4, the plain text of the statute does not foreclose use of the Internet. Indeed, the Internet has made it possible for people to "telecommute" or to assemble in "chat rooms." To adopt the Commissioner's cramped, literal interpretation would thwart the legislative intent behind the driving privileges statute, i.e., to encourage teen-agers who are no longer mandated to attend an approved school to nevertheless continue to pursue their high school diplomas. See Syl. Pt. 1, State v. Frazier, 193 W. Va. 20 (1994) ("Courts may venture beyond the plain meaning of statute in rare instances in which there is a clearly expressed legislative intent to the contrary, in which a literal application would defeat or thwart the statutory purpose, or in which a literal application of the statute would produce an absurd or unconstitutional result, departure must be limited to what is necessary to advance the statutory purpose or to avoid an absurd or unconstitutional result."). The Commissioner erred as a matter of law by concluding that enrollment in Harcourt High School did not satisfy the requirements of W. Va. Code § 18-8-11.

Accordingly, it is hereby ORDERED that the Commissioner's Final Order, effective April 24, 2001, suspending Amanda Ludwig's driving privilege is REVERSED and the Commissioner is ordered to VACATE the Final Order.5

The clerk shall enter this order as of the date noted below and shall direct attested copies to counsel of record and to the Commissioner, West Virginia Division of Motor Vehicles, 1800 Kanawha Boulevard, East, Building Three, Charleston, West Virginia 25317-0010.

Compulsory school attendance shall begin with the school year in which the sixth birthday is reached prior to the first day of September of such year or upon enrolling in a publicly supported kindergarten program and continue to the sixteenth birthday.

Exemption from the foregoing requirements of compulsory public school attendance shall be made on behalf of any child for the following causes or conditions, each such cause or condition being subject to confirmation by the attendance authority of the county:

Exemption A. Instruction in a private, parochial or other approved school. -- Such instruction shall be in a school approved by the county board of education and for a time equal to the school term of the county for the year. In all such schools it shall be the duty of the principal or other person in control, upon the request of the county superintendent of schools, to furnish to the county board of education such information and records as may be required with respect to attendance, instruction and progress of pupils enrolled between the entrance age and sixteen years;

Exemption B. Instruction in home or other approved place. -- (a) Such instruction shall be in the home of such child or children or at some other place approved by the county board of education and for a time equal to the school term of the county.(Emphasis added).

4. The definition was adopted well before the advent of the Internet. See State ex rel. Kondos, 154 W. Va. 276, 279 (1970) (quoting text of W. Va. Code 18-1-1(a)).

5. It is worth noting that contrary to the Commissioner's argument this appeal will not become moot when Miss Ludwig turns 18. See Syl. Pt. 1, Means v. Sidiropolis, 184 W. Va. 514 (1991) ("Issue of whether statute conditioning junior operator's license upon continued school attendance when licensee is between ages 16 and 18 was unconstitutional was not rendered moot when motorist who challenged statute's constitutionality turned 18, since case presented issue that could be repeatedly presented to trial court yet escape review at appellate level because of its fleeting and determinate nature. Code, 18-8-11.")